Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3054-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. TAREEK J. FOSTER, a/k/a TAREEK J. HALL, Defendant-Appellant. _______________________ Submitted October 1, 2026 – Decided October 21, 2026 Before Judges Chase and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 21-10- 1204. Jennifer N. Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Tareek Foster appeals from an April 29, 2025 order denying his petition for post-conviction relief (PCR) without a hearing, contending he established a prima facie case of ineffective assistance of counsel (IAC) requiring an evidentiary hearing. Because the PCR judge correctly determined the evidence was insufficient to sustain defendant's burden, we affirm substantially for the reasons set forth in the judge's comprehensive decision . I. On May 27, 2021, defendant unlawfully possessed a handgun and used it to shoot T.M., causing serious bodily injury. On October 4, 2021, a grand jury returned a nine-count indictment, charging defendant with first-degree conspiracy, N.J.S.A. 2C:5-2 and 2C:11-3 (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count two); first-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(j) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count six); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) A-3054-24 2 (count seven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count eight). 1 Pursuant to a negotiated agreement, defendant pled guilty to second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). In exchange for his guilty plea on the possession of a weapon charge, the State agreed to recommend a ten-year prison sentence with a five-year period of parole ineligibility pursuant to the Graves Act, to run concurrently with an eight- year sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the aggravated assault charge. The State also agreed to recommend dismissal of the remaining counts of the indictment. On August 4, 2023, defendant was sentenced in accordance with the plea agreement. The trial court found aggravating factors three, the risk that defendant will commit another offense; six, the extent of defendant's prior criminal record and the seriousness of the offense of which he was convicted; and nine, the need for deterring defendant and others from violating the law. 1 Count four of the indictment charged co-defendant Christopher Solomon with first-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(j); count nine charged him with second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b)(1). A-3054-24 3 N.J.S.A. 2C:44-1(a)(3), (6), and (9).2 The trial court also found mitigating factor fourteen, defendant was under twenty-six years of age at the time of the commission of the offense and ran his sentences concurrently. N.J.S.A. 2C:44- 1(b)(14). After the court imposed sentence, defense counsel advised the court he had the opportunity to review with defendant his appeal rights and provided a "signed copy to the [c]ourt." Addressing defendant, the court advised: THE COURT: Sir, you've got [forty-five] days from today's date to appeal either your conviction or your sentence. You have a right to be represented by counsel on that appeal. If you're unable to hire private counsel, the [o]ffice of the [p]ublic [d]efender will appoint somebody to represent you. If you fail to file within those [forty-five] days, you may lose that right. Similarly, Sir, you've got five years from today's date to file for post-conviction relief, unless an exception applies to this general rule. And if you fail to file within that time frame, you may lose that right as well. I have before me the executed appeals right form. 2 At the sentencing hearing on August 4, 2023, the judge found aggravating factors three, six, and nine applicable. However, defendant's judgment of conviction lists only aggravating factors three and six. The PCR judge correctly noted the three aggravating factors found by the sentencing judge. A-3054-24 4 [Defendant], did you have any questions for either [counsel] or the [c]ourt about anything that's been said here today? [] DEFENDANT: No. That's it. Defendant did not appeal his conviction and sentence. On June 24, 2024, he filed a self-represented PCR petition, alleging his plea counsel promised him leniency at sentencing, "which [he] was not granted." PCR counsel was appointed and submitted a brief in support of defendant's petition, contending IAC because trial counsel failed to raise all mitigating factors at the time of sentencing and file a direct appeal of defendant's sentence. On April 28, 2025, the PCR judge heard oral argument on defendant's petition. PCR counsel summarized defendant's requested relief as "fundamentally [a request] for an evidentiary hearing . . . to resolve any factual disputes." Defendant's IAC claim was based on two assertions: first, counsel's failure to argue relevant mitigating factors in support of a lesser sentence , and second, counsel's failure to file an appeal on defendant's behalf. On April 29, 2025, the PCR judge issued a written decision, denying defendant's PCR petition without conducting an evidentiary hearing. As to defendant's first claim that plea counsel was ineffective by not arguing applicable mitigating factors, the PCR judge found that counsel nonetheless had A-3054-24 5 argued several mitigating facts, although not making specific reference to mitigating factors. The judge addressed each of the mitigating factors raised by defendant and found inadequate support for them in the record. Concerning his second claim that plea counsel failed to appeal his sentence, the PCR judge found defendant was "fully informed" of his right to appeal by the sentencing court, signed the notice of appeal rights form, and had no questions for the court or his attorney about his appeal rights. The judge found "[f]ar more troubling" defendant's failure to raise this claim in his self- represented petition. Viewing these facts in a light most favorable to defendant and "[c]onsidering [his] contentions indulgently," the judge denied his petition without an evidentiary hearing. Defendant raises the following contention for our consideration: [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING BY FAILING TO ARGUE FOR APPLICABLE MITIGATING FACTORS, AND BY FAILING TO FILE A NOTICE OF DIRECT APPEAL. II. Our review "of a PCR court's factual findings is 'necessarily deferential.'" State v. Hernandez-Peralta, 261 N.J. 231, 246 (2025) (quoting State v. Nash, A-3054-24 6 212 N.J. 518, 540 (2013)). We review the court's legal conclusions de novo. State v. Harris, 181 N.J. 391, 415 (2004). When a PCR court does not conduct an evidentiary hearing, our review of the factual inferences drawn from the record and any legal conclusions is de novo. State v. Balbosa, 481 N.J. Super. 497, 519 (App. Div. 2025) (citing State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020)). That review is done "view[ing] the facts in the light most favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall, 148 N.J. 89, 158 (1997)). An IAC claim must satisfy both prongs of the two-prong Strickland/Fritz test. Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. Second, the defendant must show that counsel's "deficient performance prejudiced the defense." Ibid. Prong one requires defendant to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Ibid. Prong two requires defendant to demonstrate the errors created a "reasonable probability" the outcome of the proceedings would have been different if those errors had not been made. Id. at 694. A-3054-24 7 Applying these governing principles to defendant's two allegations, we consider whether the PCR judge erred by denying defendant an evidentiary hearing to develop the factual record in connection with his IAC claim. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Defendant is not automatically entitled to a hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Pursuant to Rule 3:22-10(b), an evidentiary hearing is required only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits. In his first argument, defendant contends that his sentencing counsel was ineffective by not arguing for these relevant mitigating factors: N.J.S.A. 2C:44- 1(b)(3) (defendant acted under strong provocation); (4) (substantial grounds tending to excuse conduct though failing to establish a defense); (9) (character and attitude of defendant indicate he is unlikely to commit another offense); and (11) (imprisonment would cause serious hardship). The PCR judge found nothing in the record to support mitigating factors three or four, and inadequate support for factor nine. Regarding factor nine, the A-3054-24 8 judge noted that counsel "argued that . . . defendant was 'willing and ready to accept responsibility,' 'acknowledged his substance abuse history,' and 'has represented to me that certainly . . . his lifestyle can't continue.'" Although not specifying factor nine, these arguments support this mitigating factor —"[t]he character and attitude of the defendant indicate that the defendant is unlikely to commit another offense . . . ." N.J.S.A. 2C:44-1(b)(9). The judge also found inadequate support in the record for mitigating factor eleven given the brief time defendant spent in Georgia with his sister , her misrepresentations of the length of time defendant assisted her and her family, and the circumstances surrounding his arrest while visiting. The judge relied on State v. Worlock, 117 N.J. 596, 625 (1990), in finding that counsel was not ineffective "for failing to make frivolous or futile arguments at sentencing." The judge noted counsel nonetheless advised the sentencing judge of "defendant's strong family support." The PCR judge's findings of fact are supported by substantial credible evidence. We also agree with the judge's legal conclusion that defendant was not entitled to an evidentiary hearing because there were insufficient facts supporting his IAC contention. Even if the judge found counsel's sentencing performance deficient, defendant failed to establish the likelihood of a different A-3054-24 9 sentencing outcome had counsel made more specific mitigating arguments. The judge sentenced defendant within the confines of the negotiated plea agreement, which avoided a longer prison sentence. We agree with the PCR judge in his conclusion that "bald assertions" claiming IAC do not justify an evidentiary hearing. As to defendant's second IAC contention regarding counsel's failure to file an appeal, the PCR judge found that defendant was fully informed of his right to appeal, yet the record does not indicate he sought to appeal his sentence. Indeed, defendant did not mention this issue in his self-represented PCR petition. The PCR judge also underscored the lack of an affidavit or certification from plea counsel acknowledging a request to file an appeal on defendant's behalf. The PCR judge's findings of fact and legal conclusion on this claim are also supported by the record. Affirmed. A-3054-24 10